UWM Official Found a Key Allegation into TKE Fraternity Appeared False, Motion Says

There are new questions tonight in the high-profile investigation of a UW-Milwaukee TKE fraternity. A top UW-Milwaukee administrator has found that the much-reported allegation that TKE fraternity members marked targeted partygoers for drugging with “color-coded Xs” “appear(ed) to be false,” according to a motion filed in Circuit Court by the attorney representing then fraternity president Thomas Kreinbring.

In the Oct. 31 motion, obtained by Media Milwaukee, defense attorney Daniel M. Adams cites excerpts from an Oct. 8 written summary of an investigation conducted by UWM Assistant Dean of Students Heather Harbach. In 2013, Harbach was named the assistant dean for Student Rights and Responsibilities at UWM.

The defense attorney is also alleging that he’s having an unusually hard time getting unredacted police reports.

UWM’s spokesman Tom Luljak cautioned that the full Harbach report is likely longer than the portions the defense attorney summarized in his motion. Asked whether the report found any wrongdoing by TKE in the portions not mentioned in the defense attorney’s motion, he said a Media Milwaukee reporter could file an open records request and attempt to obtain the full report; Media Milwaukee filed that request on Wednesday. UWM police referred Media Milwaukee to Luljak, as did Harbach. Circuit court records say the prosecution’s response was due Monday; however that response was not in the court file Wednesday, and the prosecutors involved in the case were not in the office when Media Milwaukee tried to reach them for comment.

“There is a letter from Heather Harbach to the TKE chapter’s officers, dated Oct. 8, 2014, that communicates the full decision made by the university following its investigation of the incident at the TKE house,” Luljak said. Asked whether UWM was reconsidering its actions against TKE, he said, “I can tell you that the UWM TKE chapter has been indefinitely suspended and will not be allowed to apply for reinstatement until two years from now.”

The allegations about partygoers being marked with Xs and then possibly drugged with date-rape drugs at a September party at the UWM TKE chapter house were widely reported in national and local media earlier this fall. However, the only charges to result so far in the case are unrelated drug charges against Kreinbring for allegedly possessing Adderall and marijuana. His attorney in that case, Adams, is now trying to use the university administrator’s finding on the Xs to get search warrants that allegedly turned up the Adderall and marijuana invalidated because what he calls the “salacious” allegations of Xs and date-rape drugs were used to obtain them. Previous media accounts have said police started looking into TKE after partygoers reported memory loss and were hospitalized. The Xs were mentioned in affidavits to obtain search warrants, previous media accounts said.

Charges listed on booking sheet at the time Kreinbring was arrested. Document obtained by Graham Kilmer.

Kreibring’s attorney wrote in the new motion that he did not receive discovery materials from the Milwaukee County District Attorney’s office after Kreinbring waived his preliminary hearing, which he says was contrary to the DA’s Office’s “longstanding custom and practice.” He then filed a demand for discovery, asking for, among other things, “all police reports created by UW-Milwaukee Police relating to their investigation of the above-captioned case and the allegations of drugging that led to the investigation, i.e. discovery that relates to the rationale and purported basis for the search warrants that resulted in the police finding the marijuana and Adderall that form the sole basis for the charges in this case.”

He added, that, “On October 8, the Assistant Dean of Students at the UW-Milwaukee released a written summary of her investigation into the September 13 party at the TKE Fraternity. She concluded the primary justification for UWMPD’s investigation and affidavit for and execution of a search warrant (so-called color-coded Xs on the targets of fraternity’s plot) ‘appear(ed) to be false.’”

Key portion of the defense motion in the court file. Obtained by Graham Kilmer.

Prosecutors gave the defense written police reports and Kreinbring’s video recorded statements on Oct. 15, but the reports “were heavily redacted,” the defense attorney wrote.

In the motion, Adams also writes, “The (Harbach) summary includes the following paragraph, ‘I note that early reports suggest that guests’ hands were marked with a red or black ‘x’ and alleged ‘special drinks’ were provided to those with a red ‘x.’ These reports appear to be false. All witnesses with whom I spoke are uniform in reporting that the marking of hands was haphazard, and many guests marked their own hands with whatever marker was available as they entered your house.’”

In the motion, Adams says the “highly salacious allegations” made against the defendant “are the entire basis for the affidavits used to support the search warrants for Kreinbring’s home.” The “highly salacious allegations” Adams is speaking of, are described by him in the motion as, “an intricate plot by the TKE fraternity to administer ‘date rape drugs’ to the female party goers in their drinks.”

The motion also says that the defense hasn’t received key discovery materials and that some materials the defense received were heavily redacted, compromising the ability to offer a defense for the fraternity leader Kreinbring, whose address is now given as Plymouth, Wis., in court documents.

“Critical aspects of the salacious allegations made by the UWMPD have already been disavowed by the UWM administration. The defense must be able to learn the reason for disavowment,” wrote Adams, adding that, “The defense believes for the purpose of crafting its search warrant affidavits UWMPD officers bullied witnesses, cherry-picked facts, made full use of rumors and innuendo, all the while intentionally omitting important facts.”

In the motion, Adams claims that he sent emails to the prosecuting attorney, Assistant District Attorney Danielle Chojnacki, requesting an update on the status of the demanded discovery. He goes on to say that on Oct. 28 and 30, he physically went to the District Attorney’s office in an attempt to meet with Chojnacki. He claims the assistant DA refused to meet with him.

Adams added that Kreinbring has not been charged with anything related to the aforementioned date-rape allegations or the search warrant affidavits.

In the motion, Adams writes, “Because of the state’s suppression of evidence, the defense cannot begin to prepare a defense, specifically providing this court an initial showing of cause necessary to ask for a Franks-Mann hearing on the false allegations included in the search warrant affidavits.”

What is a Franks-Mann hearing? John Campion, a Criminal Defense Attorney with a practice based out of Racine Wisconsin, told Media Milwaukee that in a Franks-Mann filing it is the defense’s responsibility to make a substantial preliminary showing that the information presented to demonstrate probable cause was based on false information made knowingly and intentionally, or with reckless disregard for the truth, or that facts were recklessly omitted and if included would have demonstrated a lack of probable cause. Campion is not involved in the Kreinbring matter but agreed to explain key areas of the law to Media Milwaukee.

If the court grants the defense a hearing on the Franks-Mann motion, the court will listen to evidence and arguments over the validity of the information provided by the affiant.

An affiant is a person who legally swears to the information presented in an affidavit.

Witnesses used in the affidavit may be subpoenaed to the hearing in order to examine the validity and application of their sworn statements.

“Ultimately, a judge must make a decision whether or not any information should be redacted in the probable cause analysis,” says Campion.

If information form the affidavit is deemed false and redacted, it will then be the responsibility of the judge to determine if the affidavit still demonstrates probable cause for a search warrant.

“The amount of information necessary for a finding of probable cause to search even a living quarter is not that great,” says Campion, adding that, “There’s a strong preference for searches that derive from the search warrant process.”

In the event that the search-warrant is deemed illegal, the prosecution may invoke the Good Faith Exception; which implies that the officers who executed the search warrant were relying on Good Faith that a court officer, usually a judge, has signed the warrant.

The Good Faith exception is supported by the Supreme Court Case US v. Leon, a ruling that wasn’t adopted by Wisconsin until 2001.

However, if the officers who executed the search are also the ones who intentionally or recklessly included the incorrect information in the affidavit the good faith exception may not apply.

In that event, the Exclusionary rule is applied. According to Campion, the Exclusionary rule is, “judicial remedy for police misconduct.” This means that, police cannot use the evidence obtained in an illegal search for use at trial, and any statements made by the defendant as a result of the search, referred to as “the fruits of the poisonous tree,” may be suppressed.

Kreinbring has two upcoming court appearances. He has a calendar call scheduled for Dec.8 and an oral ruling on Dec. 16, 2014.